Call on Cabinet on Wednesday to issue a clear policy directive to stop any house-to-house search of pirated or pornographic VCDs without search warrant by a magistrate to respect the higher interests of the right to privacy of citizens pending amendments to the Film Censorship Act to incorporate such safeguards
by Lim Kit Siang
(Penang, Sunday): It would appear that the advice of the Deputy Prime Minister and Home Minister, Datuk Seri Abdullah Ahmad Badawi, last Tuesday that efforts to combat pornographic VCDs should focus on the manufacturers, distributors and dealers and not residential premises is being countermanded or ignored with statements by both the Deputy Home Minister, Chor Chee Heung and the Inspector-General of Police Tan Sri Norian Mai who insisted that the police have the legal powers to enter private homes to raid for pornographic and pirated VCDs.
Legalistically, Chor and Norian Mai are right as under Section 33 of the Film Censorship Act 2002, powers are granted for such raids on residential premises for pornographic or illegal VCDs if the police has “reasonable grounds to believe” that any VCD involving an offence under the Act is to be found in the premises.
This is however an atrocious piece of parliamentary legislation, as it gives dangerously excessive powers to the police to raid private homes if the police has “reasonable grounds to believe” that there is at least one pornorgraphic or illegal VCD, and makes nonsense of Section 32 on “Search and seizure with warrant”, which spelt out the safeguards to protect civil rights before any such police raid or search is conducted.
Section 32 of the Film Censorship Act 2002 stipulates:
“Section 32. Search and seizure with warrant.
“(1) If it appears to a Magistrate, upon written information on oath and after such enquiry as he considers necessary, that there is reasonable cause to believe that—
(a) any premises has been used or are about to be
used for; or
“(2) A warrant issued under subsection(1) may authorize the Enforcement Officer or police officer to search the premises for, and to seize and remove from the premises—
”(3) An Enforcement Officer or a police officer acting under subsection(1) or(2) may—
(a) break open any outer or inner door of the
premises or any fence, enclosure, gate or other obstruction to the premises,
in order to effect entry into the premises;
The safeguards to protect the civil rights of citizens, and in particular the right to privacy in their homes, have been completely nullified by Section 33 of the Film Censorship Act 2002, which reads:
“Section 33. Search and seizure without warrant.
(a) enter and search that place or those
Parliament should not have enacted Section 33 of the Copyright Act which is now interpreted by the Deputy Home Minister and the Inspector-General of Police as to justify house-to-house raids for pornographic and pirated VCDs which totally nullified the purpose of Section 32 to provide safeguards for citizenship and privacy rights from abuses of police powers – and Parliament at its meeting starting next Monday should provide instant remedy for such a bad law.
The claim by Chor and Norian Mai that the police have powers to raid residential homes for pirated VCDs cannot stand legal scrutiny, as pirated VCDs do not come under Film Censorship Act 2002 but under Copyright Act 1987, which provides under Section 41(1)(d) that no offence of copyright is committed for possessing a pirated VCD which is for “private and domestic use”.
The most immediate issue at present is not the arguments about the legal powers of the police to conduct house-to-house raids for pornographic and pirated VCDs, but the citizenship and privacy rights of Malaysians from police intrusion and abuses of powers.
In recent times, police abuses of power at the expense of the citizenship rights of ordinary Malaysians have become so frequent and prevalent, with no satisfactory mechanism to remedy or to check them, that the civil society must speak up loud and clear to oppose any further extension of such dangerous police powers to conduct house-to-house search without magistrate warrant purportedly for pornographic and pirated VCDs.
In view of the grave public interest issues involved and the far-reaching implications to citizenship and privacy rights, the Cabinet on Wednesday should issue a clear policy directive to stop any house-to-house search for pirated, illegal and pornographic VCDs without search warrant by a magistrate to respect the higher interests of the right to privacy of Malaysians pending amendments to the Film Censorship Act to incorporate such safeguards.
* Lim Kit Siang, DAP National Chairman